Colorado’s medical marijuana laws leave employers in a cloud of smoke

By Holli Hartman

Published: 2011.08.01 09:01 AM

The number of medical marijuana users in Colorado is rising exponentially, and this is leaving employers, well ... dazed and confused.

There are already approximately 145,000 people on the Colorado Medical Marijuana Registry, and the state's website warns that it is still processing a backlog of applications. Presumably, many of those card-carrying members hold jobs. Employers are struggling on how - or whether - to accommodate them.

Some employers are not taking kindly to the notion of employees who use marijuana for medicinal reasons. Even though Colorado's constitution legalizes medical marijuana, federal law still bans it as a controlled substance, leading some employers to modify their policies to continue to ban "federally controlled substances" in the workplace.

"We will not allow it, and we will battle it," said Jeff Rauske, executive vice president of Advantage Security, a security guard and patrol-service provider based in Aurora.

Advantage Security has not had any employees come forward to say they have medical marijuana cards, but the company's policy makes clear that the use of marijuana, medical or not, is prohibited at all times. The company amended its drug and alcohol policy to ban any substance "prohibited by federal or state law," including marijuana.

Others, however, will employ medical marijuana users so long as the employees fully disclose that they have a Medical Marijuana Registry card and the employees are not working in safety-sensitive positions. One home repair and remodeling business located in Centennial modified its policy to accommodate medical marijuana users. But its policy also prevents the use and possession of marijuana on company property, vehicles and job sites.

"We try to address it so we aren't singled out for discriminating against some prescription drugs and not others," said the business's owner.Some employers are spooked about being sued if they decide not to accommodate medical marijuana users who may also qualify as disabled under federal and state anti-discrimination laws. A few I spoke with didn't wish to be quoted for fear of putting their businesses at risk of lawsuits.

Colorado law is still a bit hazy on whether employers are required to accommodate medical marijuana users.

The constitutional amendment passed by the voters in 2000 states that "Nothing in this section shall require any employer to accommodate the medical use of marijuana in a workplace." But that provision seems to conflict with Colorado's legal off-duty activities statute, otherwise known as the "smokers' rights" act. The law prohibits employers from terminating employees for engaging in legal activities on their own time away from work.

So, if a medical marijuana card holder smokes pot at home after work, can an employer still terminate him, or not hire him in the first place, if he tests positive on an employment drug test?

The Colorado Court of Appeals and Supreme Court have yet to answer this question. The Colorado Industrial Claim Appeals Office, which hears appeals regarding the grant or denial of unemployment benefits, hasn't directly addressed the off-duty statute. It has, however, ruled in one case that an employee terminated for testing positive on a drug test may be denied benefits even if the employee is a registered medical marijuana user.

Until Colorado's appellate courts clear the air more definitively, employers may want to look at how courts in other states have been deciding the issue.In California, voters legalized marijuana for medicinal use by enacting the Compassionate Care Act in a referendum. Much like Colorado, the California law provides a registry for those whose doctors "prescribe" marijuana to treat their illnesses. The law also states that employers are not required to accommodate medical marijuana in the workplace.

The California Supreme Court decided in 2008 that, under the state's Fair Employment and Housing Act, employers are not required to accommodate disabled employees who use medical marijuana to treat their ailments. The Fair Employment and Housing Act, much like the federal Americans with Disabilities Act, prohibits discrimination against employees who are disabled.

The court also held that an employer who fires an employee for using medical marijuana is not liable for wrongful discharge in violation of public policy, even when the public policy at issue is a law legalizing medical marijuana.

But Colorado isn't California, and not just because the state doesn't border an ocean. Colorado's medical marijuana laws differ from California's Compassionate Care Act in that they are written directly into the state's Constitution. Colorado is the only state among the 16, plus Washington, D.C., that have legalized medical marijuana to have its law carved into the constitution.

This key difference may cause employees terminated for using medical marijuana to raise novel questions of constitutional law, asserting that an employee's constitutional right to use medical marijuana supersedes an employer's right to a drug-free workplace.

Some attorneys may try to throw out as unreliable long-accepted drug testing procedures. They argue that, because marijuana stays in the blood stream much longer than other illegal substances, the tests are not acceptable proof for determining whether an employee was "impaired by" or "under the influence of" marijuana while at work.

Because other states haven't dealt with these sticky constitutional-level issues, it's anybody's guess how the Colorado Supreme Court may come down on the matter. With a legal gray area this large, employers are best served by picking a policy, sticking to it and implementing it as consistently as possible.

A complete ban on marijuana use may be practical and even necessary when safety-sensitive jobs are at play. Indeed, the U.S. Department of Transportation indicated last year that state laws legalizing marijuana will not excuse employees with commercial drivers licenses from complying with federal licensing regulations. Those regulations still ban marijuana use.

Safety was the primary reason Advantage Security decided to keep a complete ban. Rauske said he's only encountered one situation in which he had to turn down an applicant after the applicant disclosed in an interview that he had a medical marijuana card. The person had applied to be a security officer.

Although the position did not require the person to carry a firearm, the decision to deny the applicant wasn't a particularly tough one, the executive said.

"If you have someone potentially high on marijuana, it affects their safety and the safety of individuals they are hired to protect," Rauske said. "We are a safety-based industry."

The owner of the home repair and remodel company said her company will also put its foot down with workers in safety-sensitive positions and not allow employees who use medical marijuana to put themselves, customers or fellow workers at risk. But the business would consider reassigning a worker to a non-safety-sensitive position, depending on the circumstances.

However, when asked what she would do if an employee tests positive in a post-accident drug test, which her company requires, she conceded that the answer doesn't come easily."Gosh, it's such a hard thing," she said. {pagebreak:Page 1}

Holli Hartman practices at Baker & Hostetler LLP, a national law firm, specializing in both employment law and business litigation for companies of all sizes. Although she is a trained trial attorney, her favorite role is counseling clients on how to avoid litigation altogether and minimize the risk of employment disputes. For more information, contact her at hhartman@bakerlaw.com.

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